Naftel v. Montgomery County

• Decision Date: 15 November 1900
• Citation: 127 Ala. 563,29 So. 29
• Parties: NAFTEL v. MONTGOMERY COUNTY.
• Court: Alabama Supreme Court

29 So. 29

127 Ala. 563

NAFTEL v. MONTGOMERY COUNTY.

Supreme Court of Alabama

November 15, 1900

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by J. H. Naftel against the county of Montgomery. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action was brought by the appellant, J. H. Naftel, against the county of Montgomery; and counted upon an account for work and labor done in performing an autopsy and making a microscopical examination on the body of Kate Cahalan. Upon issue joined upon the plea of the general issue, the cause was tried upon an agreed statement of facts, without the intervention of a jury. This agreed statement set forth the following facts: Kate Cahalan suddenly died in August, 1896 within the county of Montgomery and state of Alabama, under such circumstances as to give reasonable grounds to the coroner of Montgomery county to believe that she had come to her death by being choked or by the use of other foul means. The said coroner thereupon duly summoned a coroner's jury and held an inquest over the body of the said Kate Cahalan and called before him and such jury J. H. Naftel, the plaintiff, who was a practicing physician and surgeon. Plaintiff by direction of said coroner made an examination of the body of the deceased in the presence of said jury, and stated in the presence of said jury that he could not give a professional opinion as to the cause of said death of the said Kate Cahalan without holding an autopsy or post mortem examination over the body. Thereupon he was directed to hold such post mortem examination and to make a microscopic examination of the organs of the deceased, which were reasonably necessary to be made in order to determine whether or not death resulted from foul means. Pursuant to such directions from the coroner, plaintiff did perform an autopsy and make a microscopic examination of the organs of deceased and was engaged in and about the same for one day and a part of another. The reasonable value of such service in making such autopsy and microscopic examination was $50. After the same had been made, plaintiff appeared before said coroner and coroner's jury and testified and reported the result of his autopsy and microscopical examination and gave a professional opinion upon the cause of death of the deceased. Prior to the bringing of this suit the claim of plaintiff against defendant for the said sum of $50 was duly presented to and filed with the board of revenue of Montgomery county and wholly disallowed by them, and their disallowance of the same duly entered of record. That the estate of said Kate Cahalan was administered on and was insolvent. Plaintiff was paid by the administrator of the estate of said Kate Cahalan, deceased, five dollars, and no more, and has received no other compensation or allowance either from said administrator or from any other source.

Upon these facts the court rendered judgment in favor of the defendant, and to the rendition of this judgment the plaintiff duly excepted. The plaintiff appeals, and assigns as error the rendition of judgment in favor of the defendant.

Watts, Troy & Caffey, for appellant.

John G. Finley, for appellee.

HARALSON J.

Whatever may have been the liability of counties at common law, and whatever may be their liability in the different states of the Union, under different statutes, the policy long adopted in this state has been and is, to remove them from any liability on any account, except as may be allowed by statute. The weight of authority, as this court has heretofore said, is opposed to subjecting them to common-law liabilities. Barbour Co. v. Horn, 48 Ala. 657.

In Van Eppes v. Commissioners, 25 Ala. 460,-a suit against the county for the hire of carriages, under the direction of the judge of the circuit court, to convey the grand jurors to the county jail for the purpose of inspecting it,-it was said: "The county can be charged only with such expenses as are authorized by law; and unless there is some statute, which authorized the judge of the circuit court to direct the sheriff to provide carriages to convey the grand jurors to the jail, for the purpose of inspecting it the expense thus incurred cannot be collected out of the county." Where there is no law which creates the liability, it cannot be enforced against the county. Mitchell v. Tallapoosa Co., 30 Ala. 131. The county is only liable for a debt the law enables it to contract, and which it has actually contracted. Barbour Co. v. Clark, 50 Ala. 418; Posey v. Mobile Co., Id. 6. "No claims are chargeable on the county treasury, nor can be paid therefrom, except such as the law imposes on the county, or empowers it to contract. No officer of the county can charge it with the payment of other claims, however meritorious the consideration, or whatever may be the benefit the county may derive...